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EXHIBIT 10.3
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 31st day of July, 1997, by and between
AQUA-CHEM, INC., a Delaware corporation (the "Company") and JEFFREY A. MILLER
(the "Executive").
WITNESSETH:
WHEREAS, the Executive has been acting as the President and Chief
Executive Officer of the Company under independent contract; and
WHEREAS, the Executive has orchestrated a management buy-out of the
Company and currently owns a substantial equity interest in the Company; and
WHEREAS, the Company desires to employ the Executive as President and
Chief Executive Officer, and the Executive desires to serve in such capacities;
and
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, the parties hereto agree as follows:
1. DEFINITIONS.
Whenever used in this Agreement, the following terms shall
have the meanings set forth below and, when the meaning is intended, the initial
letter of the word is capitalized:
(a) "Agreement" means this Employment Agreement.
(b) "Base Salary" means the salary paid to the Executive as
annual salary as set forth on Schedule A, excluding amounts received under
incentive or other bonus plans, whether or not deferred.
(c) "Beneficiary" means the persons or entities designated or
deemed designated by the Executive pursuant to Section 10 herein.
(d) "Board" means the Board of Directors of the Company.
(e) "Company" means Aqua-Chem, Inc., a Delaware corporation.
(f) "Effective Date" means the date this Agreement is executed
on behalf of the Company.
(g) "Executive" means Jeffrey A. Miller.
(h) "Permanent Disability" shall have the meaning set forth in
the Company's long-term disability program as in effect from time to time.
(i) "Third Party" means any person(s) and/or business
organization(s) of any type other than the present shareholders of the Company
and their affiliates.
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EXHIBIT 10.3
(j) "EBITDA" shall have the meaning ascribed thereto in that
certain Securities Purchase Agreement by and among Rush Creek, LLC, A-C
Acquisition Corp., CB-Kramer Sales and Service, Inc., Whitney Subordinated Debt
Fund, L.P., and Whitney Equity Partners, L.P. dated as of July 30, 1997.
2. EMPLOYMENT TERM.
The term of the Executive's employment shall be three (3)
years from the "Effective Date".
3. DUTIES.
(a) During the employment term, the Executive shall serve as
President and Chief Executive Officer of the Company, with such duties and
responsibilities as may reasonably be assigned or delegated to him from time to
time according to customary Company procedures. During his employment term, the
Executive shall devote his full time to the faithful and diligent performance of
his duties for the Company.
(b) Notwithstanding anything herein to the contrary, nothing
shall preclude the Executive from engaging in charitable and community affairs
and managing his personal investments (including J. Miller Management, Inc.), as
long as such activities do not interfere with his carrying out his duties and
responsibilities under this Agreement.
(c) During the period of Executive's employment, he shall
serve on the Board of Directors of the Company, provided that Executive may
resign from such directorship or refuse to stand for election at any time.
4. COMPENSATION.
(a) Base Salary. During the employment term, the Executive
shall be paid by the Company a Base Salary payable (after deduction of
applicable taxes) in accordance with the payroll practices of the Company.
Initially, the Base Salary shall be as set forth on Schedule A attached hereto.
(b) Incentive Compensation. The Executive shall, during the
employment term, participate in such incentive compensation programs as the
Company may, from time to time, make available to its senior executives, as more
specifically set forth on Schedule A.
5. OTHER EMPLOYEE BENEFITS.
(a) Benefit Plans. During the employment term, the Executive
shall be entitled to participate in the employee benefit programs as the Company
from time to time makes available to the Company's senior executives, including,
without limitation, medical, disability and life insurance, and retirement
plans. The Executive shall also be provided with the use of an automobile
entirely at the Company's expense, and shall be entitled to such other
perquisites as more specifically set forth on Schedule A attached hereto.
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EXHIBIT 10.3
(b) Vacation. The Executive shall be entitled to reasonable
paid annual vacation periods in accordance with the Company's policies as in
effect from time to time, but in no event shall such vacation period be less
than that set forth on Schedule A attached hereto.
(c) Regular Reimbursed Business Expenses. The Company shall
reimburse the Executive for all travel and other expenses reasonably incurred by
the Executive in the performance of his duties during the employment term,
including first class air travel. The Executive shall provide appropriate
documentation of expenses according to the Company's then current expense
reimbursement policy.
6. TERMINATION OF EMPLOYMENT.
(a) Either party may terminate this agreement upon 180 days
prior written notice from the Company's Board of Directors. Should the Executive
terminate the agreement prior to expiration of the three (3) year term, he shall
not be entitled to severance compensation. Should Employer terminate the
Executive prior to expiration of the three (3) year term, the Executive shall be
compensated 100% of all compensation and benefits under this agreement for the
remainder of the Term, as if said employment had not been terminated or twelve
(12) months compensation, whichever is greater. The reassignment of the
Executive to duties materially inconsistent with the Executive's present
authorities, duties, responsibilities, and status as an officer of the Company,
or the substantial reduction of Executive's Base Salary and/or exclusion of
Executive from the Company's standard incentive compensation programs, shall
constitute termination of employment by the Company.
(b) Notwithstanding the above, the employment term shall
terminate without notice and automatically upon the death or Permanent
Disability of the Executive, or if the Executive is convicted of a felony or
criminal fraud. Upon such termination of Executive's employment by reason of
death or Permanent Disability, the Executive or, in the event of his death, the
Executive's beneficiary shall be entitled to receive the Executive's then
current Base Salary through such date of termination, and incentive compensation
determined by determining the incentive compensation for the year in which the
date of termination occurred multiplied by a fraction, the numerator of which is
the number of complete months the Executive was employed during such year and
the denominator of which is twelve (12).
(c) Additionally, and notwithstanding the above, the Board
shall have the option to terminate the Executive's employment if the Company's
EBITA declines 50% during any 12-month period as compared to the 12-month period
prior to that. If the Executive is terminated under this paragraph, he shall be
entitled to 12 months compensation as severance.
7. RESTRICTIONS.
(a) The Executive acknowledges and agrees that the Company's
business is by its nature international, the Company's business and customer
contacts have been established and maintained at great expense, the Executive,
by virtue of his position with the Company, has and will continue to be privy to
the Company's most confidential business plans and strategies which, without the
restrictions hereinafter set forth, would enable the Executive to compete
unfairly with the Company and, accordingly, such restrictions are reasonable and
necessary to protect the legitimate interests of the
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EXHIBIT 10.3
Company. The Executive hereby covenants and agrees that the Executive will not
at any time subsequent to the date hereof, reveal, divulge, or make known to any
Person any Confidential Information (as hereinafter defined) made known to the
Executive or of which Executive has become aware, regardless of whether
developed, prepared, devised or otherwise created in whole or in part by the
efforts of the Executive and except to the extent so authorized in writing by
the Company in order to carry out the terms of this Agreement or except as
required by law. For purposes of this Agreement, the term "Confidential
Information" shall mean (i) any technical, scientific or engineering information
relating to the Company's products and/or services, (ii) information relating to
any customer of the Company, including without limitation, the names, addresses,
telephone numbers and sales records of, or pertaining to any such customer, and
(iii) price lists, methods of operation, financial data and other information
pertaining to the Company which the Company, in its sole discretion, regards as
confidential and in the nature of trade secrets. Notwithstanding anything
contained herein to the contrary, Confidential Information as used herein shall
not include that which (i) is or becomes generally available to the public other
than as a result of a disclosure by the Executive or its affiliates or
representatives, (ii) was available to the Executive prior to its disclosure to
the Executive by the Company or his representatives, or (iii) becomes available
to the Executive from a source other than the Company or its representatives,
provided that such source is not bound by a confidentiality agreement with the
Company or its representatives.
(b) The Executive hereby covenants and agrees that at no time
during the employment term and for a period of twelve (12) months following the
Effective Date of Termination will the Executive directly or indirectly in any
capacity whatsoever (whether as an employee, officer, director, consultant,
partner, member, joint venturer, agent, representative or otherwise) provide
service, advice or assistance of any nature to, or acquire an ownership interest
in (or acquire the right to acquire an ownership interest in) a competing
business (as hereinafter defined). A "Competing Business" shall mean and be
limited to any business, regardless of the form of organization, which (i) is
engaged in the design, manufacture and/or sale of products which are similar in
design or function to or otherwise compete with the products which were under
design by the Company or included in the Company's product lines during the
12-month period preceding the Effective Date of Termination (hereinafter
referred to as "Competing Products") or which (ii) sells, attempts to sell or
markets (or during the 12- month period preceding the Effective Date of
Termination sold, attempted to sell or marketed) any Competing Products within
the United States and/or any foreign country within which, during the 12- month
period preceding the Effective Date of Termination, the Company sold any of its
products (or was a party to an executory contract for the sale of any of its
products), attempted to sell, or marketed any of its products other than by
means of general advertising. Notwithstanding the preceding, the Executive shall
not be prohibited from (i) acquiring less than five percent (5%) of the stock of
any publicly traded company which may be engaged in a Competing Business, or
(ii) being employed by or otherwise providing services to a company which, among
its various businesses, is engaged in a Competing Business, provided that the
Executive is not directly or indirectly involved in any capacity whatsoever in
such Competing Business.
(c) The Executive shall not sell any products or services to,
or solicit any sales of products or services from, any customer of the Company
on behalf of a Competitor. The term "customer" shall mean any Person (including
any Person who controls, is under common control with or has the ability to
control any such Person) to whom the Company has provided goods or services
within the twenty-four (24) month period prior to the termination of the
Executive's employment hereunder or to whom the Executive or the Company had
actively solicited business in an attempt to
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EXHIBIT 10.3
develop such Person as a customer of the Company during the term hereof, or any
licensee of the Company who was a licensee of the Company at any time during the
twenty-four (24) month period prior to the termination of this Agreement.
(d) The Executive hereby covenants and agrees that, at all
times during the employment term and for a period of twelve (12) months
following the Effective Date of Termination, the Executive shall not directly or
indirectly, on behalf of himself or any other person, entity, or business,
employ or engage the services of or seek to employ or engage the services of any
person employed by the Company or any agent who represents the Company during
the period of six (6) months prior to the Effective Date of Termination, or
otherwise encourage or entice any such person to terminate or diminish their
relationship with the Company.
(e) The Executive hereby acknowledges and agrees (i) the
Executive's education and experience are such that the foregoing restrictions
will not unduly interfere with his ability to earn a livelihood, (ii) the
Company would suffer irreparable harm in the event of a violation of such
restrictions, and (iii) accordingly, in addition to any other remedies available
to it, the Company shall be entitled to injunctive relief without the posting of
bond or other collateral and the Executive shall not oppose the granting of such
relief. All costs, including reasonable attorneys' fees, incurred in enforcing
this provision such be reimbursed to the prevailing party.
(f) The Executive represents that he is not now under any
written agreement, nor has he previously, at any time, entered into any written
agreement with any person, firm or corporation, which would or could in any
manner preclude or prevent him from giving freely and the Company receiving the
exclusive benefits of the Executive's services.
8. INDEMNIFICATION.
Executive shall be entitled to be indemnified for any loss
suffered by him by reason of his acting as an officer, employee or agent of the
Company to the full extent provided by the Agreement attached hereto as Exhibit
B.
9. ASSIGNABILITY; BINDING NATURE.
This Agreement shall inure to the benefit of the Company and
the Executive and their respective successors, heirs (in the case of the
Executive) and permitted assigns. Except as specifically provided to the
contrary in this Agreement, no rights or obligations of the Company or Executive
under the Agreement may be assigned or transferred. Notwithstanding the
preceding, the rights and obligations of the Company may be assigned or
transferred if there is a change in ownership of the Company, provided that such
assignee or transferee assumes the liabilities, obligations and duties of the
Company, as contained in this Agreement, either contractually or as a matter of
law.
10. BENEFICIARIES.
The Executive may designate one or more persons or entities as
the primary and/or contingent Beneficiaries of any payments owing to the
Executive under this Agreement. Such designation must be in the form of a signed
writing reasonably acceptable to the Company. The
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EXHIBIT 10.3
Executive may make or change such designation by a similar written instrument
signed by the Executive and delivered to the Company at any time.
11. ENTIRE AGREEMENT.
This Agreement contains the entire agreement between the
Company and the Executive and supersedes all prior agreements, understandings,
discussions, negotiations and undertakings, whether written or oral, between
them with respect thereto.
12. AMENDMENT OR WAIVER.
This Agreement cannot be changed, modified or amended without
the prior written consent of both the Executive and the Company. No waiver by
either the Company or the Executive at any time of any breach by the other party
of any condition or provision of this Agreement shall be deemed a waiver of a
similar or dissimilar condition or provision at the same or at any prior or
subsequent time. Any waiver must be in writing and signed by the Executive and
an authorized officer of the Company, as the case may be.
13. SEVERABILITY.
In the event that any provision or portion of this Agreement
shall be determined to be invalid or unenforceable for any reason, in whole or
in part, the remaining provisions of this Agreement shall be unaffected thereby
and shall remain in full force and effect to the fullest extent permitted by
law. If any of the restrictions contained in Section 7 shall be deemed to be
unenforceable by reason of the extent, duration or geographical scope thereof or
otherwise, then the restrictions shall be reduced to such extent, duration,
geographical scope, or other provisions thereof pursuant to the provisions of
Section 13 hereof, and in its reduced form the restrictions contained in Section
7 shall then be enforceable in the manner contemplated hereby.
14. SURVIVORSHIP.
The respective rights and obligations of the parties hereunder
shall survive any termination of this Agreement to the extent necessary to the
intended preservation of such rights and obligations.
15. GOVERNING LAW.
This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of Wisconsin without
reference to principles of conflicts of laws.
16. NOTICES.
Any notice given to either party shall be in writing and shall
be deemed to have been given when delivered personally or sent by certified or
registered mail, postage prepaid, return receipt requested duly addressed to the
party concerned, if to the Company, at its principal office and, if to the
Executive, at the address of the Executive shown on the Company's records, or at
such other address as such party may give notice of.
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EXHIBIT 10.3
17. HEADINGS; CONSTRUCTION.
The headings of the paragraphs contained in this Agreement are
for convenience only and shall not be deemed to control or affect the meaning or
construction of any provision of this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
AQUA-CHEM, INC.
By: /s/ J. Scott Barton
-------------------------
Its: VP
-------------------------
EXECUTIVE:
/s/ JA Miller 7/31/97
----------------------------------
JEFFREY A. MILLER
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EXHIBIT 10.3
SCHEDULE A
Executive: Jeffrey A. Miller
Title: President and Chief Executive Officer
Base Salary: $475,115.00
Effective Date: August 1, 1997
Incentive Compensation:
Aqua-Chem's Management Incentive Plan
IC = Base Compensation x 100% participation rate x % payout where Base
Compensation is $475,115.00
100% payout percentage = % payout rate as defined in
Aqua-Chem's Management Incentive Plan of November 15, 1997
The Incentive Compensation shall be due and payable immediately upon
the close of Aqua-Chem's fiscal year-end, but no later than January
20th of the next year
OTHER EMPLOYEE BENEFITS:
Insurance: Health and dental insurance per Company plan.
Long term disability: 60% of Base Salary Benefit for five (5) years.
Life Insurance: $5,000,000 Term Life - owned by Executive, paid by
the Company.
Company Automobile: Company-paid Cadillac STS or equivalent.
Other: Annual physical exam at Company's expense.
Company-paid membership at Country Club of Executive's choice
(total cost not to exceed $50,000), Milwaukee Athletic Club,
and University Club
Annual Financial Planning/Tax Planning (up to $6,000).
Pension Plan: 4% of salary plus 3% salary matching.
Vacation: Five (5) weeks annually.
Professional Associations.
AQUA-CHEM, INC. EXECUTIVE:
By: /s/ J. Scott Barton /s/ JA Miller
------------------------------ ---------------------------
JEFFREY A. MILLER
Its: VP Date: 7/31/97
------------------------------ -------------------
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EXHIBIT 10.3
EXHIBIT B
INDEMNIFICATION AGREEMENT
AGREEMENT made and entered into this 31st day of July, 1997 by and
between Aqua-Chem, Inc., a Delaware corporation with principal offices in
Milwaukee, Wisconsin (hereinafter sometimes referred to as AQM) and Jeffrey A.
Miller, an individual resident of Michigan (hereinafter sometimes referred to as
"Mr. Miller").
WITNESSETH:
WHEREAS, the Company desires to enter into an Employment Agreement with
Mr. Miller; and
WHEREAS, as an inducement to Mr. Miller to enter into the Employment
Agreement, the Company has agreed to indemnify them as hereinafter set forth.
NOW, THEREFORE, in consideration of the premises AQM and Mr. Miller
hereby agree as follows:
1. DEFINITIONS. As used herein, the following terms shall have
the following meanings:
(a) "Expenses" include fees, costs, charges, disbursements,
attorney fees and any other Expenses incurred in connection
with a Proceeding (as hereinafter defined).
(b) "Liability" includes the obligation to pay a judgment,
settlement, penalty, assessment, forfeiture or fine, including
an excise tax assessed with respect to any employee benefit
plan, and reasonable Expenses.
(c) "Party" includes an individual who was or is, or who is
threatened to be made, a named defendant or respondent in a
Proceeding.
(d) "Proceeding" means any threatened, pending or completed
civil, criminal, administrative or investigative action, suit,
arbitration or other Proceeding, whether formal or informal,
which involves foreign, federal, state or local law and which
is brought by or in the right of AQM or by any other person
relating to AQM.
(e) "Indemnified Party" means Jeffrey A. Miller.
2. MANDATORY INDEMNIFICATION.
(a) AQM shall indemnify Mr. Miller and in the event of his
death, his estate, personal representative and heirs
(hereinafter collectively referred to as the "Indemnified
Party"), to the extent that the Indemnified Party has been
successful on the merits or otherwise in the defense of a
Proceeding, for all reasonable Expenses
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EXHIBIT 10.3
incurred in the Proceeding if the Indemnified Party was a
party because Mr. Miller is or was a director and/or officer
of AQM.
(b) AQM shall also indemnify the Indemnified Party against
Liability incurred by the Indemnified Party in a Proceeding
the Indemnified Party was a party to because Mr. Miller was or
is a director and/or officer of AQM, unless Liability was
incurred because Mr. Miller breached or failed to perform a
duty that he or it owes to AQM and the breach or failure to
perform constitutes any of the following:
1. A willful failure to deal fairly with AQM, Inc. or
its shareholders in connection with a matter in which
Mr. Miller has a material conflict of interest.
2. A violation of the criminal law, unless Mr. Miller
had reasonable cause to believe that the conduct was
lawful or no reasonable cause to believe that the
conduct was unlawful.
3. A transaction from which Mr. Miller derived an
improper personal profit.
4. Willful misconduct.
(c) Determination of whether indemnification is required under
this Section 2 shall be made under Section 5 of this
Agreement.
(d) The termination of a Proceeding by judgment, order,
settlement or conviction, or upon a plea of no contest or an
equivalent plea, does not, by itself, create a presumption
that indemnification of the Indemnified Party is not required
under this section.
3. ALLOWANCE OF EXPENSES AS INCURRED. Upon written request by an
Indemnified Party who is a party to a Proceeding, AQM shall pay or
reimburse the Indemnified Party's reasonable Expenses as incurred if
the Indemnified Party provides AQM with all of the following:
(a) Written affirmation of the Indemnified Party's good faith
belief that Mr. Miller has breached or failed to perform
either of their duties to AQM.
(b) A written undertaking, executed personally or on behalf of
the Indemnified Party, to repay the allowance and to pay
interest (at an interest rate equal to the rate then currently
paid by AQM on borrowed funds) on the allowance to the extent
that it is ultimately determined under Section 5 of this
Agreement that indemnification under Section 2 of this
Agreement is not required and that indemnification is not
ordered by a court under Section 4 of this Agreement. The
undertaking under this Section shall be an unlimited and
unsecured general obligation of the Indemnified Party.
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EXHIBIT 10.3
4. COURT-ORDERED INDEMNIFICATION.
(a) An Indemnified Party who is a party to a Proceeding may
apply for indemnification to, or for a review of an adverse
determination under Section 5 of this Agreement by the court
conducting the Proceeding or to the Circuit Court for
Milwaukee County, Wisconsin and shall be entitled to
indemnification as hereinafter provided in Section 4 (b).
(b) The Indemnified Party shall be entitled to indemnification
if the court determines either of the following:
(i) That the Indemnified Party is entitled to
indemnification under Section 2 of this Agreement. If
the court also determines that AQM unreasonably
refused the request for indemnification, AQM shall
pay the Indemnified Party's reasonable Expenses
incurred to obtain the court-ordered indemnification.
(ii) That the Indemnified Party is fairly and
reasonably entitled to indemnification in view of all
the relevant circumstances, regardless of whether
indemnification is required under Section 2 of this
Agreement.
5. DETERMINATION OF RIGHT TO INDEMNIFICATION. The Indemnified Party
shall select one of the following means of determining his or her right
to indemnification:
(a) By a majority vote of a quorum of the Board of Directors
of AQM consisting of directors who are not at the time parties
to the same or related Proceedings. If a quorum of
disinterested directors cannot be obtained, by majority vote
of a committee duly appointed by the Board of Directors of AQM
and consisting solely of two or more directors who are not at
the time parties to the same or related Proceedings. Directors
who are parties to the same or related Proceedings may
participate in the designation of members of the committee.
(b) By independent legal counsel selected by a majority vote
of a quorum of the Board of Directors or its committee in the
manner prescribed in (a) above or, if unable to obtain such a
quorum or committee, by a majority vote of the full board of
directors, including directors who are parties to the same or
related Proceedings.
(c) By a panel of three arbitrators consisting of one
arbitrator selected by those directors entitled under (b)
above to select independent legal counsel, one arbitrator
selected by the Indemnified Party and one arbitrator selected
by the two arbitrators previously selected.
6. ADDITIONAL RIGHTS. In addition to the specific rights to
indemnification set forth herein, the Indemnified Party shall be
entitled to such additional rights to indemnification as may from time
to time be provided or permitted under AQM's Certificate of
Incorporation or by-laws or the general business corporation laws of
Delaware or Wisconsin; provided,
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EXHIBIT 10.3
however, that no provision under any of the foregoing shall serve to
diminish any rights of indemnification otherwise specifically granted
under this Agreement.
7. MISCELLANEOUS MATTERS. This Agreement shall be governed by the laws
of the State of Wisconsin, may only be amended by written instrument
signed by the parties and shall inure the benefit of and be binding
upon the parties and their heirs, personal representatives, successors
and assigns; provided, however, that no assignment by operation of law
or otherwise shall relieve a party of its obligations hereunder.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first above written.
AQUA-CHEM, INC.
By: /s/ J. Scott Barton
---------------------------------
/s/ JA Miller 7/31/97
------------------------------------
Jeffrey A. Miller
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EXHIBIT 10.3
AMENDMENT TO EMPLOYMENT AGREEMENT
This AMENDMENT (this "AMENDMENT"), dated as of June 25, 1998, between
AQUA-CHEM, INC. (the "COMPANY"), a Delaware corporation, and JEFFREY A. MILLER
(the "EXECUTIVE") to the Employment Agreement (the "ORIGINAL AGREEMENT"), dated
as of July 31, 1997, by and between the Company and the Executive. The
Original Agreement, as amended by this Amendment, is hereinafter referred to as
the "AGREEMENT." All capitalized terms used herein without definition shall
have the respective meanings assigned to such terms in the Original Agreement.
WITNESSETH:
----------
WHEREAS, the parties desire to amend the Original Agreement in order to
extend the term of the Original Agreement from three (3) years to six (6) years
from the Effective Date.
NOW THEREFORE, in consideration of the premises set forth herein and
for other good and valuable consideration, the sufficiency and receipt of which
is hereby acknowledged, the Company and the Executive agree as follows:
Section 1.1. Section 2 of the Original Agreement is hereby amended and
restated in its entirety as follows:
"The term of Executive's employment shall be six (6) years from the
Effective Date."
Section 1.2. Section 6(a) of the Original Agreement is hereby amended by
substituting the number "six (6)" in place of the number "five(5)" appearing in
the third and fourth lines thereof
Section 1.3. The terms and provisions set forth in this Amendment shall
modify and supersede all inconsistent terms and provisions set forth in the
Original Agreement and, except as expressly modified and superseded by this
Amendment, the terms and provisions set forth in the Original Agreement are
hereby ratified and confirmed and shall continue in full force and effect.
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EXHIBIT 10.3
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date first above written.
AQUA-CHEM, INC.
By: /s/ J. Scott Barton
-------------------------
Name: J. SCOTT BARTON
Title: VICE-PRESIDENT
/s/ J A Miller
----------------------------
JEFFREY A. MILLER